Editor’s note: Christine Taylor, a graduate of UCLA School of Law, is an associate at Towne, Ryan and Partners P.C., a law firm with attorneys licensed in New York, Connecticut, Vermont, Massachusetts, Washington D.C., and New Jersey. Taylor has grown up in the camping industry, her family has owned three campgrounds in both the Kampgrounds of America Inc. (KOA) and Yogi Bear’s Jellystone Park Camp-Resort franchise systems.
Below is a slate of questions that Taylor answered based off of questions WOODALLSCM.com (WCM) submitted from campground owners. If you have further questions feel free to submit them to WCM’s Editor Ben Quiggle at [email protected]
This is not legal advice and owners/operators should consult with their own lawyers as laws/rules change from state to state.
Is a campground “essential?”
As of right now, campgrounds have not been specifically defined by a state as an essential or nonessential business. It would be best to keep checking as the directives change and keep an eye on what they are having hotels do at this time. You are generally more like a hotel than a mobile home park. In New York for example, as of March 16, hotels will have to shut down restaurants, gyms, and pools, but can still have guests rooming at the facility. Ultimately, no people congregating.
Can owners legally turn people away?
Short answer, Yes. Long answer — yes but be very careful that you won’t run afoul of discrimination laws. Make it explicitly clear its due to the pandemic and be careful when turning away people in protected classes, such as those with a disability or in minority groups.
Is it considered discrimination to turn a camper away that may appear sick?
No, you can turn away people for any non-discriminatory purpose, sickness (if not a disability) is not a discriminatory reason. However, any questions you ask or steps you take must be applied the same to all guests.
Are park owners in trouble if they open and people get sick at the park? Could there be legal issues on that front?
Unfortunately, there could be legal issues on any front — it just depends on if they have merits. If you allow a guest to enter who likely is infected, then you could be subject to a claim from your employees or other guests.
If a camper becomes sick while at the park, can they be removed?
You can ask them to leave like you would with any other guest who breaks a rule. I would, however, offer a refund.
If a park owner has seasonals, can they remove a seasonal who becomes sick?
As with transient guests, you can ask them to leave, like you would with any other guest who breaks a rule. So, make sure you add to your rules statements about not allowing sick guests to enter and apply the rules to everyone. I would, however, offer a refund.
Should park owners be monitoring camper temperatures? Is it legal to do so at check-in? Can they turn people away with high temperatures?
There is no requirement to check the temperature of guests. Again, you can ask these questions of guests and turn away those who have high temperatures. You can condition their entrance to your park on these matters as long as they are not applied discriminatorily.
What should employers do about employee travel?
Employers should not require travel to countries heavily affected by the coronavirus (COVID-19). Presently the U.S. State Department is suggesting that all Americans reconsider traveling abroad. Until further guidance is issued, following that recommendation is prudent.
Non-essential domestic travel for employees for work should also be reconsidered, especially if it is to a location with more cases of COVID-19 than the departure location.
While an employer may not dictate whether and where an employee may travel in their non-work time, the employer may ask those employees who traveled, where they were and whether they were exposed to COVID-19 while they traveled, and take necessary steps with regard to those employees if they have come from areas designated by the Centers for Disease Control (CDC) as being high risk.
Currently, the CDC has advised that all nonessential travel to China, Iran, South Korea and Italy should be avoided and that older or chronically ill individuals should consider postponing travel to Japan.
Should employees who are sick come to work?
The CDC recommends that all employers encourage sick employees to stay home, especially if they show symptoms of COVID-19, other coronaviruses or the flu. The Equal Employment Opportunity Commission (EEOC) similarly advises that during a pandemic it is permissible to require employees to stay out of work if they display symptoms of an illness that is not considered a disability or an illness that poses a “direct threat.”
Be aware that it is possible that that the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and or state or local leave laws will be implicated by employee illness or the illness of an employee’s family member. Employers should treat each instance on a case-by-case basis to determine what, if any, obligation it has to employees in relation to those laws. Employers should also be cognizant of their own policies regarding those laws.
May an employer ask about employee illness, symptoms and or health history?
Whether an employer may request information regarding the employee’s symptoms and the employee’s health history is a fact-specific analysis. Under the ADA an employer may do so only if it has a reasonable belief, based on objective evidence, that: 1) an employee’s ability to perform essential job functions will be impaired by a medical condition, or 2) an employee will pose a direct threat due to a medical condition. A “direct threat” is defined by the ADA as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
It is very possible that the direct threat analysis applies to potential COVID-19 cases, however, it is inadvisable that the employer take such steps without prior discussion with their attorney.
Should an employer identify sick employees to staff and third parties?
Employers should treat information regarding an employee’s illness as a confidential medical record in compliance with the ADA, keeping it in a separate confidential medical record file, and be careful not to identify employees who are ill by name.
In the event that an employee displays symptoms of COVID-19 or tests positive for COVID-19, the employer should take steps to inform others who may have been in contact with that employee that they should take the necessary steps to test and or self-quarantine. The employer should not, however, disclose the name of the employee.
Must employers compensate employees who are not working?
Under the Fair Labor Standards Act (FLSA), employees who are exempt must be paid in full for any week in which they perform any work. If an exempt employee performs no work in a given week, they need not be compensated for that week. Unionized employers should consult contracts in regard to wage issues.
Under the FLSA, employees who are non-exempt need not be paid for any time they do not perform work. Unionized employers should consult contracts in regard to wage issues.
Compensation of employees on leave for their own illness or the illness of a family member will depend on what, if any statutory or employer-provided leave they qualify for and the terms of the leave program. Employers should review their policies and act accordingly. If there is a question of leave eligibility or applicability, contact your attorney for guidance.
A failure to compensate employees who are out because of operational closure has the potential to trigger layoff provisions in contracts and may even trigger obligations under a state’s Worker Adjustment and Retraining Notification (WARN) or state’s “mini warn” provisions. If you are anticipating operational closure, it is highly advisable that you contact your attorney before doing so.
Employees may be asking for more sick leave time, are there rules in place that owners might need to be aware of and follow?
Employers should first check any applicable contracts or policies they have. They should also make sure that they are aware of any applicable state and federal leave laws and any state paid sick leave requirements. In addition to the Family and Medical Leave Act and the Americans with Disabilities Act, which may or may not apply based upon the size of the employer and the facts of the situation, many states have adopted leave laws in recent years. It may be that there are state leave entitlements that require the employer to offer paid or unpaid leave to employees. If the employer is unsure of their legal obligations, the employer should contact their attorney to make sure they act in compliance with all of their legal obligations.
Some parks utilize work campers or contract workers, how do employers deal with these types of employees if they have to take sick time?
Employee classification issues, including whether an independent contractor is properly classified as such, is a very significant issue for all employers. Exercising too much control over an independent contractor creates the risk that the contractor could be determined to be an employee or the employer could be deemed a joint employer with an employment agency, subjecting the employer to potential liability.
It is advisable to address each situation on a case-by-case basis to ensure that you address the circumstance appropriately, while minimizing risk.
Can employees refuse to work?
Under the Occupational Safety and Health Act (“OSHA”), employees can only refuse to work when a realistic threat is present, a real danger of death or serious injury. Working around other people or the public does not generally meet this threshold. An exception would be employees in the medical field if proper protective equipment is not provided.
Can an employee be made to deep clean your facilities?
Be careful – if you are having an employee use a chemical that they haven’t used before, make sure they are trained on it, otherwise, you could be in violation of OSHA.
What laws apply to my business?
There are multiple differences in applicable law both due to the location and size of your business. If you are unaware of what laws apply, please consult an attorney for clarity.